Sentencing and Penal Policy Commission - call for evidence: analysis of responses

Executive Summary

Background

The independent Sentencing and Penal Policy Commission was established in February 2025 to consider how imprisonment and community-based interventions are used in Scotland and ensure that it has a sustainable prison population.^[1] The Commission will make recommendations for improvements to sentencing and penal policy and to how offending behaviour can be dealt with, with the underlying aim of ensuring less crime, fewer victims, and safer communities.

The Commission’s call for evidence ran from 15 April to 25 May 2025. The call contained four open questions aimed at gathering written evidence on the Commission’s areas of focus. The analysis of responses will inform the Commission’s final report and recommendations to Scottish Ministers, which will be presented before the end of 2025.

In total, 101 responses to the call for evidence were received from 48 individuals and 53 organisations. Of the 48 individuals who responded, 19 answered only Q3 of the call for evidence and provided near identical responses. Please see the introduction to Chapter 5: Release from custody for more information.

Public calls for evidence invite everyone to express their views; individuals and organisations interested in the topic are more likely to respond than those without a direct interest. This self-selection means the views of respondents do not necessarily represent the views of the entire population or those interested in the topic.

Overarching themes

A few themes emerged repeatedly across the call for evidence questions. These are summarised below, from most to least prevalent in respondents’ comments.

Many respondents called for more awareness raising to counter punitive attitudes towards people in the criminal justice system. Respondents raised concerns that community sentences were viewed as a ‘soft option’, particularly by those involved in the criminal justice system or members of the public, as they were seen as less of a punishment than being incarcerated, or that the people serving community sentences could pose a risk to the public. It was felt that the prevailing discourse used by the media and some politicians, for example, is fuelling a view that punishment, rather than rehabilitation, should be the priority focus of intervention. While comments under this theme mostly related to views held by the public, they were also felt by respondents to apply to professionals, such as the judiciary, criminal justice staff and staff across wider services. Given the perceived society-wide nature of such punitive views, some respondents suggested measures to counter them.

Respondents across all questions highlighted that rehabilitation of people involved in the criminal justice system requires a coordinated multi-agency response across services, including health, housing and employment services, and that criminal justice sits in a wider infrastructure of community-based support. Reasons for advocating for a multi-agency response included addressing the high level of needs presented by many individuals, providing a holistic, timely and consistent response, reducing negative consequences of poor communication between agencies, and reducing the likelihood of reoffending.

Many respondents commented on the need to pay attention to the impact of crime on victims, such as to centralise victim protection. This did not just apply to victims directly impacted by the crime, but also to others, notably families of the person involved in the criminal justice system. Improved victim support was felt to be essential to keep people safe and reduce feelings of vulnerability, provide reparation through restorative justice programmes, and help shape public understanding. Perceived benefits of restorative justice schemes - where victims and perpetrators interact to discuss the crime and its impact - were described by respondents, highlighting evidence that shows these types of interventions could help reduce reoffending, reduce negative emotions among victims and generate economic savings.

Some respondents commented on non-compliance with sentencing requirements or bail conditions, advocating for more flexibility and addressing the causes of non-compliance. A contrasting idea from a few respondents in this theme was the need for stronger measures and action to address non-compliance, notably to respond swiftly to breaches. More tailored approaches (see below) were recommended to ensure requirements were proportionate and did not inadvertently increase the chances of breaches. Similarly, work to address cultural change around non-compliance was suggested to promote understanding of factors leading to non-compliance.

The need to provide a holistic, person-centred approach to people in the criminal justice system was highlighted by some respondents. It was felt that decision-making should occur in the context of life circumstances and specific needs, as well as a trauma-informed, rights-based perspective. Concerns were raised about the extent of needs presented by many in the system. These included additional support needs, such as learning disabilities, neurodivergence or other vulnerabilities, but also needs presented by an ageing population, as a result of substance use or poor mental health, or a lack of provision, such as housing. Key issues raised by respondents included needs not being adequately assessed or met, a lack of community-based support leading to criminal justice measures being applied instead, people struggling to understand their community sentence and its implications, and insufficient attention being paid to legislation such as the Equality Act 2010 and the Adults with Incapacity (Scotland) Act 2000.

Another recurring theme was calls for more data collection and reporting or for more research. Improved local data collection was felt to contribute to the ability to undertake quality research at the national level. Perceived issues with data gathering were highlighted by respondents. These included a lack of consistency across Scotland, of transparency in decision-making, of information on the effectiveness of interventions - such as mandatory drug or alcohol treatment orders - and the difference these make on the number of people currently in prison due to breaches or analysis of why prisons are overcrowded, and of integrated recording systems across services. Suggested ways to improve data gathering and analysis were provided, including establishing a shared information system across services, identifying and addressing gaps in data, and recommending future research.

Community sentencing (Q1)

Many respondents emphasised the need to provide individualised rehabilitation support for people subject to a community sentence. It was highlighted that many people involved in the criminal justice system need significant levels of support, that rehabilitation could effectively contribute to a reduction in offending, and that it should be preventative in nature. In other words, rehabilitation should focus on addressing underlying causes of crime, such as substance use or poor mental health, to avoid a ‘revolving door’ approach. Respondents felt such support should be rights-based and trauma-informed, address health and housing needs, including mental health and substance use issues, and involve a consistent, trusting relationship with a key professional. Other less commonly mentioned aspects to include in rehabilitation were travel support, help maximising benefits, employment support, mentor support and volunteering.

Support for strengthening community sentencing and adopting these solutions instead of imprisonment, wherever possible, was expressed by many respondents. Reasons given included evidence that community sentences could reduce reoffending compared to short-term custodial sentences by helping to sustain informal support networks, prevent family trauma, and aid rehabilitation. However, respondents raised concerns about the effectiveness of existing community sentencing, with commonly mentioned challenges including inconsistent use of community sentencing options and insufficient resourcing in the community to deliver good support to people in the context of their community sentence. Further funding for statutory and third sector services was felt to be necessary to encourage preventative work by shifting resources from prisons to the community.

Several respondents at Q1 commented on the need to improve Community Payback Orders (CPOs), for which ten different requirement options are available. CPOs were seen as a useful form of community sentence, as respondents felt that this approach helped to address offending behaviour, that review hearings helped manage an order, and that they could help support victims of domestic abuse if there is a condition of using the Caledonian system. Respondents felt it was vital that CPOs offer a positive experience for people or assist with providing support, such as accessing counselling as part of ‘other activities’ if this is funded. However, improvements to CPOs were suggested, such as using the full range of conditions available and improving unpaid work opportunities.

Calls to use a wide range of community sentences were made by several respondents. It was suggested that this could enable more people to serve their sentence in the community and allow sentences to be more tailored to individuals’ circumstances, for instance, minimising disruption to existing protective factors such as informal and formal social support, employment and housing. It was suggested that a flexible range of options could allow people’s disabilities or other specific needs to be considered.

Some respondents noted that the ability of the criminal justice system to shift to a more preventative approach focused on rehabilitation was linked to the need to reduce demand for prison spaces. These respondents typically emphasised the need for prison as a last resort, or to aim to avoid its use for certain people, such as pregnant women, women with dependent children, or people with substance use issues. Some called for an increase in diversion schemes to prevent crime, which were considered a useful way to address risks before they escalate, avoid the traumatising impact of incarceration, and reduce offending.

Other themes evident in responses to Q1 included:

• Some recommended considering a wider policy and societal context, particularly in relation to supporting people or adopting rights-based approaches, given their interplay with people in the criminal justice system. These included implementing previous policy commitments, an issue considered further at Q4.
• Considering revising the approach taken to certain offences was suggested by some respondents, mainly individuals. These centred around those accused of sexual offences or domestic abuse. Concerns included discrimination against such individuals, resulting in mistreatment or heavy-handed responses.
• A few respondents advocated the use of punishment, with calls for more prisons or custodial sentences and for sentences to be ‘punishment’. The majority of these respondents were individuals. Organisations in this theme were more likely to suggest custodial sentences were needed for prolific offenders or for people committing certain crimes, such as those involved in organised crime.

Bail and remand (Q2)

Many respondents at Q2 raised similar issues to those raised at Q1 regarding the need for improved community-based support for people on bail. Respondents called for more community support to be in place, particularly at the point of release, better joined-up working, and addressing drivers of crime, such as substance use.

Reducing the use of remand was advocated by many respondents. Concerns over the use of remand in certain cases were highlighted, such as it being used for those who were not considered high risk, because of the nature of the accusation, or due to a lack of bail support. Respondents, including individuals, highlighted concerns with the use of remand for people before trial, given their view that such people could be found innocent or that accusations were not serious enough to warrant it. Suggestions to help reduce remand included adopting a presumption against the use of remand for low-risk cases, such as non-violent offences, where evidence is unsubstantiated, and particularly for those where the justification is housing insecurity or a lack of support services.

Many respondents suggested that judicial decision-making regarding remand or bail conditions should be improved. Two main issues were described: inconsistent use of remand and bail, and how effectively assessments are used to inform decision-making. A lack of transparency in how decisions were reached by the judiciary was also raised.

The need to address pressures or perceived failings in the justice system was highlighted by some respondents. These mainly centred around the need to address delays, respond swiftly or address the unpredictable length of the time spent in remand or on bail. Issues raised included court backlogs leading to longer periods spent on remand, increasing demand for and lengthier periods spent on Bail Supervision Orders creating resource pressures and the shortage of courts and court personnel.

Comments on the use of electronic monitoring (EM) as a bail condition were made by some respondents, though the topic could be considered more broadly, for instance, in exploring alternatives to custodial sentences. There was support for increasing the use of EM and further exploring developments in this area, as it was felt to be an effective way to reduce the need for police visits and provide automatic notification of breaches. It could also be useful for older people or younger people, so their needs can be met through community supports. However, respondents highlighted that EM needed to be supplemented with supervision, support, and regular reviews to ensure that it worked well and that victims were protected.

Other themes evident in responses to Q2 included:

• Some respondents highlighted poor conditions in prison for people on remand and felt this should be addressed. Long remand periods, overcrowding, trauma and suicide risks caused by being placed in remand, and the lack of access to purposeful activities or support, were the main considerations noted.
• Some respondents provided comments regarding the need to improve remand and bail arrangements, with the need for greater consistency across Scotland and improvements to bail supervision being the main considerations. Inconsistent provision highlighted by respondents included areas such as social work availability; alternatives to remand; quality of reports; access to community supports (considered throughout this report); poor communication between services (see ‘Improve multi-agency working’ in Chapter 2: Overarching themes); and unexpected releases.

Release from custody (Q3)

Many respondents felt that preparation for release should begin in prison, as early as possible. Key concerns raised were that conditions in prisons were not currently considered conducive to pre-release planning and support, with purposeful activity opportunities for people often lacking, especially for those on remand.

The need to address barriers to release from custody was raised by many respondents. These views centred around issues with a requirement to undertake rehabilitation programmes as a condition of release. A perceived lack of support was also felt to act as a barrier to release from custody. Specifically, concerns regarding the Order for Lifelong Restriction (OLR) custodial sentence, and their impact on release for people subject to them, were raised by a few respondents.

The issue of progression^[2] of people through the criminal justice system was raised by many respondents, with barriers experienced in enabling progression to release from prisons or to open estates. The main area identified was that progression is generally linked to a requirement to attend rehabilitation programmes as the way to demonstrate reduced risk. Key factors acting as a barrier to release in terms of accessing these programmes included the lack of availability of relevant programmes, programmes being so over-subscribed that participation is unlikely before a person’s parole hearing, and that failure to complete a programme is often given greater weight in decisions around progression than other indicators of positive progress, such as the completion of educational changes or relational support. Calls were made to improve support and progression opportunities, primarily through increased resourcing.

Many respondents advocated for improved release planning just before leaving prison. Issues related to planning immediately before release included services being ‘surprised’ that a person is being released, leading to a reactive response due to an absence of advance planning. The point of release is one of the most vulnerable transitions in the criminal justice system and that release direct from court continues to pose challenges for pre-release planning, specifically concerning housing. Other comments addressed the timing of release, or clarity as to when release would occur. It was noted that release close to the weekend, such as on Fridays, or the day before public holidays, made it difficult to access support adequately, particularly if individuals had to present as homeless or had no access to funds.

Many respondents specifically mentioned the need for effective throughcare support.^[3] Throughcare support involves planning but also the provision of support to meet specific needs. A few respondents welcomed the introduction of the new national throughcare service for those on short-term sentences or remand – called ‘Upside’ – expressing the view that this was a positive development and could help improve consistency across Scotland. Ways the throughcare service could be improved were suggested, including forging strong links with services in each local authority, establishing clear and regular communication with justice services in each area, ensuring direct outreach contact with people in custody, and ensuring multi-agency case management structures are in place. Some respondents noted the need to build trusting relationships between people involved in the criminal justice system and professionals so that support can be offered through release. This was seen to help people being released stay ‘on track’ and adjust during this period, overcome setbacks, and provide reassurance.

Issues regarding how families of people involved in the criminal justice system are considered were raised by many respondents, including by some individuals who provided identical comments. Suggestions for improvement included the Scottish Prison Service doing more to facilitate family contact, providing responsive, accessible and knowledgeable support to families and children to minimise unintended but significant impacts that can occur in the delivery of justice services, and using Child Rights and Wellbeing Impact Assessments at every stage of the justice system, including during sentencing, imprisonment, progression and release.

The need to address the mental and physical health needs of people being released from custody was noted by many respondents, in part to counter the traumatic and disruptive impact of custodial sentences. Some individuals used identical wording to highlight the impact on their family’s mental health due to uncertainty surrounding release dates and obstacles to the progress of a family member. The impact of substance use on people’s outcomes was also noted.

Other themes, each raised by several respondents at Q3, which focused on the support needed by those involved in the system, included:

• Providing people in prison, as well as upon release, with support to gain practical skills to facilitate reintegration into the community. This was viewed as a way to improve people's life chances, such as helping to develop structure and routines, improve self-efficacy, confidence and mental health, and develop positive social networks.
• Ensuring people being released from custody have access to sufficient financial income.
• Addressing the housing needs of people being released. This was raised across call for evidence questions.

In addition to themes about support and preparation for release, other broader themes were mentioned. Many respondents, including some individuals who provided identical statements, commented on the need to improve parole decision-making. Suggested improvements included revising parole criteria to consider those who maintain their innocence, reforming parole frameworks to support proportional, trauma-informed decisions, and ensuring parole boards are informed of risks to ensure decisions can be defended if challenged.

Many respondents at Q3 and some at Q1 raised the need to modernise technological solutions within the criminal justice system. These comments reflected a view that better use of technological solutions could assist penal reform, for instance, by supporting monitoring compliance in the community, improving integrated electronic recording systems, increasing engagement and access to programmes and maintaining family ties.

A few respondents highlighted staffing issues impacting custody and release, notably staff shortages or work pressures, and the knowledge or attitude of staff. A few respondents, mostly individuals, raised the need to consider the treatment of people who maintain their innocence or are wrongly convicted.

Implementation of recommendations (Q4)

The most prevalent theme at Q4 was the need to implement existing policy recommendations or commitments. A few respondents offered a list of McLeish recommendations that they felt needed to be fully implemented. Other respondents noted some recommendations had progressed, while some had not, or the action taken had not created the desired results. Areas where further efforts to implement McLeish recommendations were suggested included reducing the prison population, the presumption against short prison sentences, throughcare and reintegration support, investing in robust alternatives to custody, increasing rather than decreasing the use of Home Detention Curfew, and engaging the public on penal reform.

Some respondents in this theme mentioned recommendations from other reports they felt should be implemented. A few respondents also mentioned reports or initiatives across other policy areas that they felt had a bearing on criminal justice and should be implemented. Please see Chapter 6: Implementation of recommendations for a full list.

Some respondents called for more to be done to implement the McLeish recommendation to rebuild confidence in the criminal justice system. Prevailing punitive views among the general public were seen by these respondents as undermining efforts to reform the system. It was felt that this was among the least implemented of the recommendations and that the punitive discourse had prevailed for decades. Suggestions for changing attitudes included devising a public communication strategy, Community Justice Scotland taking the lead on innovations and sharing good practice nationally and doing more to counter inaccurate media reporting.

Some respondents highlighted issues about reducing the prison population. These comments aligned with a few of the McLeish report recommendations, such as 1, 4, 15, 19, and 23. Suggestions to reduce the number of people in prison included working with the judiciary to change attitudes towards custodial sentences and build their confidence in relation to community-based disposals and justice social work services, focusing on reducing the proportion of prisoners on remand, and taking bolder steps to ensure action and using custody as an absolute last resort.

Addressing systemic or structural barriers to implementing change within the criminal justice system was advocated by some respondents, though they tended not to link these to specific McLeish report recommendations. Issues highlighted were often reflected in other questions, but they included fragmented funding, short-term pilots, workforce capacity issues, addressing system delays, and protecting vulnerable people.

The need for better support for people involved in the criminal justice system was highlighted by some respondents, aligned with McLeish report recommendations 18, 19, 20 and 22, for example. Issues raised aligned with those described elsewhere in this report, such as a few respondents who highlighted the need for improved mental health support or to address housing needs, support to address substance use or the lack of rehabilitation options, the need for more secure care alternatives, better support in prisons, and the need to address causes of offending (see Chapter 5: Release from custody). More joined-up services and multi-agency working were recommended by a few as an element of improved support for people, particularly those with complex needs (see ‘The need for improved multi-agency working’ in Chapter 2: Overarching themes).

A few respondents viewed progress courts for those on community sentences positively, and felt their use should be increased, as suggested in Recommendation 13 of the McLeish report. These were viewed as a way to ensure regular review of progress and compliance with community sentences and deal robustly with non-compliance.

Conclusions

Many individuals and organisations with detailed knowledge responded to the call for evidence, sharing their views and evidence to inform the work of the Sentencing and Penal Policy Commission. Overall, there was broad support for objectives relating to reducing the prison population and for greater and more creative use of community sentences and bail options. However, respondents highlighted the need to focus on rehabilitation, improve interventions, improve Community Payback Orders, invest in community supports, and use the full range of conditions available within community sentences or extend the range of community sentences. The need to ensure progression can occur was also frequently highlighted, as was the need for enhanced provision of throughcare and community supports to address complex needs and promote individual outcomes.